ML080070539
| ML080070539 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 01/07/2008 |
| From: | James Adler, Sexton K NRC/OGC |
| To: | |
| SECY RAS | |
| References | |
| 50-293-LR, ASLBP 05-848-02-LR, RAS 14875 | |
| Download: ML080070539 (11) | |
Text
January 7, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR GENERATION CO.
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ENTERGY NUCLEAR OPERATIONS, INC.
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Docket No. 50-293-LR
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(Pilgrim Nuclear Power Station)
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ASLBP No. 05-848-02-LR
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NRC STAFF RESPONSE TO PILGRIM WATCHS MOTION FOR RECONSIDERATION INTRODUCTION On December 19, 2007, the Atomic Safety and Licensing Board (Board) issued an Order Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watchs December 14 and 15 Motions (December 19 Order). This Order stated that [o]ngoing monitoring is not within the scope of this proceeding, and that information related to monitoring wells is irrelevant to the issues at hand before this Board absent some express indication from the Applicant that it intends to rely upon monitoring wells for making its determination that buried pipes and tanks are not leaking at such great rates that they cannot satisfy their intended safety functions.1 On December 28, 2007, Pilgrim Watch filed a motion for reconsideration of the December 19 Order.2 Pursuant to 10 C.F.R. § 2.323(c), the Nuclear Regulatory 1 December 19 Order at 1.
2 Pilgrim Watch Motion for Reconsideration ASLBP No. 06-848-02 (Dec. 28, 2007)
(Reconsideration Motion).
Commission staff (Staff) hereby files its response to Pilgrim Watchs Reconsideration Motion.
For the reasons stated below, the Staff submits that the Reconsideration Motion should be denied.
BACKGROUND This matter arises from an application for license renewal, filed pursuant to 10 C.F.R. Part 54, on January 25, 2006, by Entergy to renew the operating license for the Pilgrim Nuclear Power Station (Pilgrim) for an additional twenty-year period.3 On October 16, 2006, the Board admitted Pilgrim Watchs Contention 1, which, in its admitted form, states:
The Aging Management program proposed in the Pilgrim Application for license renewal is inadequate with regard to aging management of buried pipes and tanks that contain radioactively contaminated water, because it does not provide for monitoring wells that would detect leakage.4 A year and a day later, on October 17, 2007, the Board provided further clarification of this admitted contention.5 In denying Entergys motion for summary disposition of Contention 1,6 the Board found a genuine dispute regarding:
whether those Pilgrim aging management programs, or AMPs, that relate to relevant buried pipes and tanks are adequate on their own, without need of any leak detection devices (Intervenors propose monitoring wells), to assure that the pipes and tanks in 3 See Letter from Michael Balduzzi, Entergy Nuclear Operations, to U.S. NRC, Re: Licensee Renewal Application, (Jan. 25, 2006) (Agencywide Documents and Access Management System (ADAMS) Accession No. ML060300028).
4 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 315 (2006).
5 Memorandum and Order (Ruling on Entergys Motion for Summary Disposition of Pilgrim Watch Contention 1, Regarding Adequacy of Aging Management Program for Buried Pipes and Tanks and Potential need for Monitoring Wells to Supplement Program), LBP-07-12, 66 NRC ___ (Oct. 17, 2007)
(slip op.) (Summary Disposition Order).
6 Entergys Motion for Summary Disposition of Pilgrim Watch Contention 1 (June 8, 2007).
question will perform their intended functions and thereby protect public health and safety.7 The Board explicitly narrowed the issue by stating that:
the only issue remaining... is whether or not monitoring wells are necessary to assure that the buried pipes and tanks at issue will continue to perform their safety function during the license renewal period or, put another way, whether Pilgrims existing AMPs have elements that provide appropriate assurance as required under relevant NRC regulations that the buried pipes and tanks will not develop leaks so great as to cause those pipes and tanks to be unable to perform their intended safety functions.8 On December 14, 2007, Pilgrim Watch received from the Applicant, in connection with settlement discussions, certain information regarding monitoring wells at Pilgrim.9 That same day, Pilgrim Watch requested an extension of time to review this newly received information.10 The following day, Pilgrim Watch filed an additional motion contending that the information it had received from Pilgrim the day before should not be excluded merely because [it was] presented in the course of compromise negotiations.11 In response to Pilgrim Watchs December 14 and 15 motions, the Board, in its December 19, 2007 Order, endeavored again to clarify the scope of this admitted contention:
Ongoing monitoring is not within the scope of this proceeding; only challenges to errors or omissions from the Applicants Aging Management Program (AMP) are properly within the scope. The single admitted contention relates to whether or not Applicants AMPs are sufficient to enable it to determine whether or not 7 LBP-07-12, 66 NRC at, slip op. at 16.
8 Id. at 18.
9 Pilgrim Watchs Motion Requesting that the Order Establishing the Schedule for the Proceedings Be Reset to Extend All Deadlines for Filings Thirty (30) Days to Allow Review Documents Provided by Entergy Regarding Monitoring Wells Requested November 20, 2007 Received December 14, 2007 (Dec. 14, 2007) at 2.
10 Id at 1.
11 Pilgrim Watchs Motion Regarding Admissability [sic] of Factual Evidence (Dec. 15, 2007) at 3.
certain buried pipes and tanks are leaking at such great rates that they cannot satisfy their respective intended safety functions.
Therefore, unless and until the applicant expressly advises this Board and the Agency that it intends to rely upon monitoring wells for making its determination that buried pipes and tanks are not leaking at such great rates that they cannot satisfy their intended safety functions, information related to monitoring wells is irrelevant to the issues at hand before this Board. Thus, to the extent that Pilgrim Watch requests disclosure of information relating to any monitoring wells, that request is denied.12 Subsequently, on December 21, 2007, Judge Ann Marshall Young issued a separate statement that dissented from the Boards ruling, in its December 19 Order, that evidence related to monitoring wells was not relevant.13 Judge Young argued that because Contention 1, as admitted, challenges the AMPs lack of monitoring wells, evidence related to monitoring wells would be relevant to the contention. Id. at 2. Further, Judge Young argued that information relating to monitoring wells could potentially be relevant to the more basic question of the AMPs sufficiency, given that, for example, there might not be bright-line determining factors whether particular AMPs will or will not ensure performance of intended safety functions, and that some comparison of the effectiveness of such AMPs and monitoring wells could appropriately arise.
Id at 2-3.
Pilgrim Watchs Reconsideration Motion, filed on December 28, 2007, requests that the Boards December 19 Order be reconsidered on the grounds that the Board misconstrued Contention 1. Specifically, Pilgrim Watch contends that:
- 1)
The Applicants failure to include monitoring wells in its buried pipe and tank AMPs is an omission from the AMPs, rendering issues regarding monitoring wells (including, 12 December 19 Order at 1-2.
13 Separate Statement of Judge Ann Marshall Young Regarding December 19 Order Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watchs December 14 and 15 Motions (Dec.
21, 2007) (Judge Youngs Statement).
apparently, issues involving ongoing monitoring) properly within the scope of the instant proceeding;14
- 2)
Contention 1 expressly relates to the Applicants AMPs in that it challenges Pilgrims failure to employ monitoring wells; therefore, the Board incorrectly reasoned that the Applicants decision not to utilize monitoring wells in its buried pipe and tank AMP program would render the issue of monitoring wells irrelevant to the proceeding;15 and
- 3)
The Board incorrectly viewed Contention 1 as arguing for mere snap shot usage of monitoring wells to determine static corrosion and leak conditions rather than ongoing usage of such wells aimed at identifying whether corrosion and leaks are worsening over time; this misconception led the Board to conclude that monitoring well issues were beyond the scope of the proceeding.16 DISCUSSION A.
Legal Standards Governing Motions for Reconsideration The standard governing motions for reconsideration is specified in 10 C.F.R. § 2.323(e),
which requires that such motions demonstrate compelling circumstances, such as a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. A party seeking reconsideration should bring decisive new information or demonstrate a fundamental... misunderstanding of a key point by the Board. See, e.g.,
Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004). Reconsideration petitions must establish an error in a... decision, based upon an elaboration or refinement of an argument already made, an overlooked controlling decision or 14 Reconsideration Motion at 4.
15 Id. at 5-6.
16 Id. at 4-5.
3), CLI-principle of law, or a factual clarification. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-1, 55 NRC 1, 2 (2002). Parties have 10 days from the date of the Board action being challenged to file reconsideration motions. 10 C.F.R. § 2.323(e).
Pilgrim Watch has not demonstrated a clear and material error in the Boards December 19 Order and has, thus, failed to meet the requirements for reconsideration. See, e.g. Entergy Nuclear Vermont Yankee, L.L.C., et al. (Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Station), CLI-07-13, 65 NRC 211 (2007).
B.
The Board Correctly Ruled That Ongoing Monitoring Is Out of Scope The December 19 Order accurately stated that [o]ngoing monitoring is not within the scope of this proceeding.17 The purpose of this proceeding is to assess the Applicants AMPs18 so as to determine whether, during the period of extended operation under a renewed license, the aging of key plant structures and systems will be adequately managed. Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,464 (1995). In contrast, the Applicants use of monitoring wells to check for leakage at the present time is a voluntary effort by the Applicant in connection with the plants current operations. It is not a component of the Applicants AMPs - indeed, the fact that Pilgrims buried pipes and tanks AMPs do not utilize monitoring wells is precisely what Pilgrim Watch is challenging in Contention 1.19 Furthermore, as a general matter, prevention of radioactive leaks is an everyday operational issue that falls outside the scope of license renewal proceedings. See, e.g., Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 17 December 19 Order at 1.
18 In this case, the AMPs for buried pipes and tanks that may contain radioactive water.
19 See p. 2, supra (text of Contention 1 as admitted).
al.),
LI-de ould rd Correctly Ruled that Evidence Regarding the Need for Monitoring Wells is to monito s
e re es
, and only then, evidence regarding leak detection could becom taken by the Applicant appears to be incorrect. In its December 19 Order, the Board ruled that 06-4, 63 NRC 32, 37 (2006) (allegations of possible release of excessive amounts of strontium-90 is an everyday operational issue that would not be a reason for denying license renew citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), C 04-36, 60 NRC 631, 637-38 (2004). Pilgrims ongoing monitoring well activities are thus outsi the scope of this license renewal proceeding. The Boards ruling in this regard was therefore correct, and the Reconsideration Motion, in so far as it pertains to ongoing monitoring, sh be denied.
C.
The Boa Not Relevant The Staff submits that the Board was correct in ruling that evidence relating ring wells is not relevant to the issues before it, with one small exception.
First, it is correct that information relating to monitoring wells for buried pipes and tank that may contain radioactive water is not now relevant to the adjudication of Pilgrim Watchs Contention 1, because the issue that the Board must decide is whether Pilgrims AMPs for those buried pipes and tanks are adequate to manage aging. Although, as admitted by the Board, th contention refers to Pilgrim Watchs objection to the lack of monitoring wells in the Applicants buried pipes and tanks AMPs, the main thrust of the contention is the adequacy of the AMPs.
Monitoring wells would only become relevant if and when the Board finds that the AMPs a inadequate to manage the aging of the underground pipes and tanks. Thus, if the Board determines that the AMPs are adequate to manage aging, no evidence regarding monitoring wells or other leak detection devices would be relevant. On the other hand, if the Board decid that the AMPs are inadequate, then e relevant and admissible.
Second, the Boards ruling that this irrelevancy can only be overcome through action ing their intended safety nctions, information related to monitoring wells is irrelevant to icant, if the Board finds that the AMPs ells being the criterion of compelling circumstance that would justify reconsideration of a Board order.
unless and until the Applicant expressly advises this Board and the Agency that it intends to rely upon monitoring wells for mak its determination that buried pipes and tanks are not leaking at such great rates that they cannot satisfy fu the issues at hand before this Board.20 This Board ruling states, in essence, that monitoring wells are only relevant if the Applicant plans to utilize them in its AMPs. But the fact that the Applicant has not been planning to utilize monitoring wells as part of its AMPs is being challenged by Pilgrim Watchs contention. Thus, whether or not monitoring wells are proposed by the Appl are inadequate, the use of wells may become relevant.
D Pilgrim Watchs Additional Claim of Error Does Not Justify Reconsideration Pilgrim Watch also claims that the Boards paraphrasing of Contention 1 in its December 19 Order put forth an incorrect snap shot characterization of the role of monitoring w advanced by Pilgrim Watch. Here, Pilgrim Watch is merely claiming that the Boards clarification of the scope of Contention 1 in its Summary Disposition Order does not precisely match the clarification of Contention 1 in the December 19 Order, primarily because the Board utilized the present tense in the latter Order.21 This does not meet 20 December 19 Order at 1-2.
21 See Reconsideration Motion at 4.
CONCLUSION For the reasons discussed above, Pilgrim Watchs Reconsideration Motion should be denied.
Respectfully submitted,
/RA/
James E. Adler Counsel for NRC Staff Dated at Rockville, Maryland this 7th day of January, 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR OPERATIONS, INC.
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Docket No. 50-293-LR
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(Pilgrim Nuclear Power Station)
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ASLBP No. 06-848-02-LR
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO PILGRIM WATCHS MOTION FOR RECONSIDERATION in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, as indicated by a single asterisk(*), or by deposit in the U.S. mail system, as indicated by a double asterisk (**), this 7th day of January, 2008.
Administrative Judge*
Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rfc1@nrc.gov Administrative Judge*
Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pba@nrc.gov Administrative Judge*
Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: amy@nrc.gov Office of Commission Appellate
- Adjudication Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov Sheila Slocum Hollis**
Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Office of the Secretary*
Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board*
Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Terence A. Burke, Esq.**
Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 Mary Lampert**
148 Washington Street Duxbury, MA 02332 E-mail: lampert@adelphia.net David R. Lewis, Esq.**
Paul A. Gaukler, Esq.
Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord**
Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Fax: 781-934-6530 Town Manager**
Town of Plymouth 11 Lincoln St.
Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us
/RA/
James E. Adler Counsel for the NRC Staff